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Attar HusseIn Vs. Fazli Brothers, Ltd. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 1140 of 1945
Judge
Reported inAIR1946Bom481; (1946)48BOMLR377
AppellantAttar Hussein
RespondentFazli Brothers, Ltd.
Excerpt:
.....court rules (0. s.), 1936, rule 1991--commercial cause-definition-'trader' -interpretation.;the word 'trader' appearing in the definition of 'commercial cause' in rule 199 of the rules of the bombay high court (original side), 1936, imports buying and selling of commodities. hence, the business of a film producer which is that of a manufacturer of films or that of a distributor of films does not fall within the definition of ' trader.' - - 3. counsel for the plaintiff has urged that the business which the plaintiff as well as the defendants are carrying on comes within the wide definition of 'trade' to be found in halsbury's laws of england, vol. the defendants being producers as well as distributors in the course of their business as distributors would also enter into transactions..........a statement to be found in halsbury's laws of england, vol. xxxii, p. 303, in the notes, where the word ' trade ' is in some cases also taken to include manufacture. arguing on this, he has contended that the plaintiff and the defendants being traders, the transaction which was entered into between them and which is the subject-matter of this suit is an ordinary transaction between traders and therefore within the definition of a ' commercial cause ' in rule 199 of the high court rules. the defendants being producers as well as distributors in the course of their business as distributors would also enter into transactions by way of selling their distribution rights for particular territories and for particular periods with persons like the plaintiff and the transaction in suit is thus an.....
Judgment:

Bhagwati, J.

1. The plaintiff is a distributor of cinema films. The defendants are producers and distributors of cinema films, this being one of the objects for which they have been incorporated. The plaintiff entered into an agreement with the defendants for the purchase from the defendants of the distribution rights of their social pictures 'Fashion', 'Bhai Behen' and 'College' for certain territories therein mentioned for a period of six years. The suit is filed by the plaintiff to recover damages from the defendants for a breach of this agreement.

2. The plaintiff has taken out this summons for a transfer of this suit to the list of commercial causes. This summons is contested by the defendants who have contended before me that the cause of action in this suit does not arise out of the ordinary transactions of merchants and traders and that therefore this suit should not be transferred to the list of commercial causes.

3. Counsel for the plaintiff has urged that the business which the plaintiff as well as the defendants are carrying on comes within the wide definition of ' trade' to be found in Halsbury's Laws of England, Vol. XXXII, p. 303, and In re Duty on Estate of Incorporated Council of Law Reporting for England and Wales (1888) 22 Q.B.D. 279. He also drew my attention to a statement to be found in Halsbury's Laws of England, Vol. XXXII, p. 303, in the notes, where the word ' trade ' is in some cases also taken to include manufacture. Arguing on this, he has contended that the plaintiff and the defendants being traders, the transaction which was entered into between them and which is the subject-matter of this suit is an ordinary transaction between traders and therefore within the definition of a ' commercial cause ' in Rule 199 of the High Court Rules. The defendants being producers as well as distributors in the course of their business as distributors would also enter into transactions by way of selling their distribution rights for particular territories and for particular periods with persons like the plaintiff and the transaction in suit is thus an ordinary transaction which would be entered into by them as the distributors and thus the cause of action in the suit would be one arising out of the ordinary transactions between traders.

4. Counsel for the defendants on the other hand pointed out that the word ' trade ' was not to be understood in the sense contended for by the plaintiff. According to the authority of Palmer v. Snow [1900] 1 Q.B. 725 'trade ' is buying and selling, and is not to be understood in the wide sense contended for by the plaintiff. He also contended that even if contrary to his submissi won the business of the distributors of films be called a ' trade ' this was not an ordinary transaction between the plaintiff and the defendants, and therefore the suit should not be transferred to the list of commercial causes.

5. At the earlier hearing of this summons, counsel for the defendants had contended that his clients were producers of films and therefore could not be called merchants within the definition of that term which has been laid down in Josselyn v. Parson (1872) L.R. 127, where Bramwell B. observed that ' a merchant of or in an article is one who buys and sells it, and not the manufacturer selling.' This proposition was not contested by counsel for the plaintiff and I need not say anything more about it. The argument which has been advanced by counsel for the plaintiff is only on the word ' traders' appearing in the definition of ' commercial causes' in Rule 199 of the High Court Rules, and I have got to determine whether the parties fall within the category of ' traders.'

6. Even though in certain cases the word ' trade ' has been given an extended meaning, I have got to determine for the purpose of the transfer of this suit to the list of commercial causes what definition of 'trader' I shall adopt for the purpose. I am inclined to accept the observations of Channel J. in Palmer v. Snow (1872) L.R. 129 where the learned Judge observed (p. 727):-

Now, although ' tradesman' may be sometimes used to describe something different from a gentleman, or in contradistinction, to other kinds of persons, I do not think the word is used in that sense in this Act. It seems to denote a person carrying on trade-buying and selling -and a barber does not come within that description.

The word ' trader ' in my opinion as used in Rule 199 of the High Court Rules imports buying and selling of commodities and is not to be understood in the wide sense contended for by counsel for the plaintiff. It can hardly be said that the business of the film producer which is that of a manufacturer of films or that of a distributor of films is that of buying and selling within the definition of the word ' trader ' which I have adopted above.

7. Under the circumstances the plaintiff as well as the defendants not satisfying the category of either merchants or traders,-and certainly they are not bankers within the definition of a commercial cause in Rule 199 of the High Court Rules,-I need not pause to consider whether the sale of these distribution rights within particular territories for this particular period of six years would be an ordinary transaction between the parties. If it were necessary to do so, I would say that it is not an ordinary transaction between the producers on the one hand and distributors on the other or between distributors inter se. I do not, however, base my decision on that aspect of the question.

8. The summons will therefore be dismissed with costs. Counsel certified.


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